As most students of labor law know, NLRB elections are suppose to be conduct under laboratory conditions. If there is any undue influence or election conduct, the experiment is held again. This is known as the General Shoe doctrine. One of the most troublesome type of case in recent years concerns how to treat pro-union conduct of supervisors. In Madison Square Garden, 350 NLRB No. 8 (June 28, 2007), a divided Board reaffirmed its Harborside standard. The Board described this standard as follows:

The Harborside Board took the opportunity of the remand to rearticulate Board law and formulated a two step inquiry to apply in cases involving objections to an election based on pro-union supervisory conduct.

1) Whether the supervisor’s pro-union conduct reasonably tended to coerce or interfere with the employees’ exercise of free choice in the election. This inquiry includes: a) consideration of the nature and degree of supervisory authority possessed by those who engage in the pro-union conduct and b) an examination of the nature, extent, and context of the conduct in question.

2) Whether the conduct interfered with freedom of choice to the extent that it materially affected the outcome of the election, based on factors such as (a) the margin of victory in the election; (b) whether the conduct at issue was widespread or isolated; (c) the timing of the conduct; (d) the extent to which the conduct became known; and (e) the lingering effect of the conduct Id. at 909.

While largely reaffirming established Board precedent, in examining the nature, extent, and context of the supervisors’ conduct under the first prong of the Harborside standard, the Board held with respect to the supervisory solicitation of authorization cards that “absent mitigating circumstances” such solicitations have “an inherent tendency to interfere with the employee’s freedom to choose to sign a card or not” and thus “may be objectionable.” Id. at 911. In so holding, the Board reversed its prior law concerning supervisory solicitations of authorization cards.

Thus, the Board majority had little difficulty in overturning the election because supervisors handed out authorization cards and made several statements in support of the union. The sole Democrat on panel, Member Wilma Liebman would have allowed the union victory to stand because the supervisors did not engage in any type of threatening behavior.

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Comments

Regardless of this decision, wouldn't Section (8) (2) of the Act prohibit supervisors voicing their support for the union.

(8) (2) It shall be an ULP for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: An employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.

Under (2) (5): The term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose in whole or in part of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

Now, while here there is no union yet... comments under (2) (5) seem to construe labor organization pretty broadly: "Any group including an employee representation committee may meet the statutory definition of “labor organization” even if it lacks a formal structure, has no elected officers, constitution or bylaws, doesn’t meet regularly, and doesn’t require payment of initiation or dues."
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Sujan:
I think you mean to refer to 8(a)(2) which is an unfair labor practice. This was an Election Objection case under Section 9(a) where the standards are a bit different. However, you do raise a good point.
Mitchell H. Rubinstein